Thursday, 07 February 2013

A Melbourne lawyer explains the Magistrates' Court Processes

I received this note overnight from a Melbourne lawyer who has presented his credentials to me.

Dear Michael,

As a legal practitioner I feel it is necessary that your readers understand the basics of the court process to provide a context for Mr. Thomson's criticisms of the way he has been dealt with by the police to date. Today, out the front of the Melbourne Magistrates' Court Mr. Thomson was reported as saying,

"What was disappointing about today was it became clear that not only was last Thursday wrongly done by the police, but after 18 months in relation to investigating this matter they still don’t even have witnesses that they’re able to produce for us in terms of some of these issues that are here,” he said after the brief 15-minute hearing...

There are a number of points that need to be made about what Mr. Thomson said so your readers and the wider public know of the deliberate false impressions that Mr. Thomson has created. Also, perhaps I can provide some insightful comments about the law and future conduct of the proceeding that will ensure Mr. Thomson can "get the issue on and over with..."

Firstly, today's hearing was a Filing Hearing. That is the first step for matters in the committal stream, that is, matters that are to be heard by a jury. The Magistrates' Court website defines a Filing Hearing as,

Firstly, there is no expectation by either the police or the accused that a witness list will be handed over to the accused by the police at a Filing Hearing. Mr. Thomson's crticism of the police on this point is a complete and utterly disgraceful comment. It is ill-informed and misleading. It should be denounced, hence my emailing you.

Secondly, if Mr. Thomson did not come to Victoria to be interviewed as was requested, the two options were to summons him to attend or arrest him. It is he who botch the arrest up in my view, not the police. Mr. Thompson would have been better advised to come to Victoria to be interviewed voluntarily (even if he made a no comment record of interview) than leave open the ability of police to compel his attendance through his arrest and bail. Again, Mr. Thomson's representations to the public are misleading.

Thirdly, the next hearing listed for 22 May will be a Committal Mention. A Committal Mention is defined on the Magistrates' Court website as,

"Committal Mention

A preliminary hearing prior to the full committal hearing. Permission to cross-examine witnesses may be given, matters in dispute will be discussed and a date for the committal hearing can be set at this stage. The Court may also hear and determine some charges if the accused pleads guilty." Essentially, the Committal Mention is the court administratively staying on top of the matter, the court finding out how the matter is progressing and if it needs to make any orders to ensure the matter moves along as it were.

Pursuant to s108(1) of the Criminal Procedure Act 2009 (Vic) a hand up brief must be served at least 42 days before the Committal Mention unless the Accused gives written consent to a lesser period. Section 110 of the Criminal Procedure Act sets out what must be included in the hand up brief including but not limited to the charge sheets, witness statements, exhibits such as recording or photographs to be relied upon by the police and the like- see http://www.austlii.edu.au/au/legis/vic/consol_act/cpa2009188/s110.html

Following the service of the hand up brief, pursuant to s118(1) of the Criminal Procedure Act, if a hand-up brief is served under section 107, the accused and the DPP or, if the DPP is not conducting the committal proceeding, the informant must jointly file with the registrar a case direction notice at least 7 days before the committal mention hearing.

A Case Direction Notice is to be found at http://www.magistratescourt.vic.gov.au/sites/default/files/Default/Case-Direction-Notice-Form-32.pdf It is in this form that the accused (having read the hand up brief) lists those witnesses they will apply for leave to cross examine (see para. 4 in the Form 32). The hand up brief will have a list of witnesses the prosecution intend to call and a summary of the evidence they will give. The hand up brief will also contain the witness statements sworn by the witnesses. Until the hand up brief has been served it is disengenuous for Mr. Thomson to be critical of the police regarding the witnesses. The Filing Hearing is the first court date for the matter, no practitioner or accused would have expected the hand up brief there and then. It is precisely why the court has Filing Hearings and Mention hearings- to provide a framework for steps to be taken in a matter. It is for this reason Mr. Thomson's criticism of the police is disgraceful and misleading.

Fourthly, if Mr. Thomson is genuine when he states that he wants "to get the issue on and over with as quickly as possible", he can seek to stand trial without a committal.

A Committal Hearing is defined on the Magistrates' Court website as,

"Committal Hearing

A hearing where a magistrate will hear evidence of the prosecution and decide whether a properly instructed jury would convict the accused. This is the last hearing a matter will have before it proceeds to a higher jurisdiction."

Section 143(1) states, "Any time after the service on an accused of a hand-up brief, the accused may elect to stand trial. The elction is to be made in accordance with s143(2). Having made an election to stand trial without a committal, s 143(4) states, "On the attendance of the accused before the Magistrates' Court, if the court considers that the accused understands the nature and consequence of the election, the court must commit the accused for trial in accordance with section 144." If Mr. Thomson does not elect to stand trial without a committal his statement it was a “priority to try and get this issue on and over with as quickly as possible to clear my name" could only be considered to be a nonsense and false. The usual course is for an accused to go through a committal hearing. The benefit of a committal to the accused include perhaps avoiding being committed to stand trial (improbable in Mr. Thomson's case), test the evidence, have some charges struck out, or obtain inconsistencies which may aid the accused at the trial, but Mr. Thomson has nailed his 'speed' colours to the mast. Mr. Thomson will not go through a committal hearing if he wants the chance to clear his name "as quickly as possible."

Why Mr. Thompson has sought to attack the police is understandable but misguided. In the court of public opinion he must have little wins in the media to keep asserting his innocence with confidence and hence make his innocence believable. However, hopefully with the above analysis I have demonstrated that he has been silly and indeed misleading in asserting the police botched his arrest in NSW and that the police have been incompetent in not having a witness list available at today's Filing Hearing. Further, Mr. Thomson may regret his statement that it is a “priority to try and get this issue on and over with as quickly as possible to clear my name". If Mr. Thomson proceeds to committal that statement will be borne out to be vacuous and false. In being so certain of his innocence and in seeking to portray the police as the morally bankrupt party in this proceeding through the media, Mr. Thomson is playing a dangerous game. Mr. Thomson would do better, in my view, to say nothing and be circumspect for he may well be innocent, however if a jury finds him guilty he will look brazen and utterly criminal. Do not expect any trial of these charges (should one occur) before the end of this year.

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A Melbourne lawyer explains the Magistrates' Court Processes

I received this note overnight from a Melbourne lawyer who has presented his credentials to me.

Dear Michael,

As a legal practitioner I feel it is necessary that your readers understand the basics of the court process to provide a context for Mr. Thomson's criticisms of the way he has been dealt with by the police to date. Today, out the front of the Melbourne Magistrates' Court Mr. Thomson was reported as saying,

"What was disappointing about today was it became clear that not only was last Thursday wrongly done by the police, but after 18 months in relation to investigating this matter they still don’t even have witnesses that they’re able to produce for us in terms of some of these issues that are here,” he said after the brief 15-minute hearing...